MZYXP v Minister for Immigration

[2012] FMCA 960

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYXP v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 960

MIGRATION – Refusal of protection visa – judicial review – extension of time – relocation – test for whether risk of harm if applicant relocates – bias – whether the Tribunal should have waited for new laws to commence – particular social group considered.

Migration Act 1958 (Cth), ss.36(2)(aa), 474, 477.

Abebe v Commonwealth (1999) 197 CLR 510
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC)
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Luu & Anor v Renevier (1989) 91 ALR 39
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v JiaLegeng (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104
VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 (FC)
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC)
Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275

Applicant: MZYXP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 495 of 2012

Judgment of: F. Turner FM

Hearing date: 11 October 2012

Date of Last Submission: 11 October 2012

Delivered at: Melbourne

Delivered on: 31 October 2012

REPRESENTATION

The Applicant appeared In Person with the assistance of a Pashto interpreter

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application for judicial review filed on 30 April 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 495 of 2012

MZYXP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant was refused a protection visa and seeks judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 22 March 2012.

2. The grounds in the application are as follows:

   (1)The Member in coming to his decision has not understood the Principle of relocation. She has not understood the High court decision in regard to this matter. See Plaintiff M 13-2011v Minister for Immigration and Citizenship {2011} HCA23 (23 June 2011)

   (2)The Tribunal not understand the concept of real chance of risk to me should I be returned to Pakistan.

   (3)The Tribunal in making its assessment of real chance of risk or harm the Member relied on dated country information about Pakistan. The Member failed to understand the reality of the networking and cooperation between the many Taliban groups in Pakistan.

   (4)In relying on dated information about Pakistan I was not afforded natural justice or procedural fairness.

   (5)The Tribunal coming to her decision did not understand my mental health condition nor did it place weight on the Psychologists reports provided.

   (6)The Member failed to understand that I would be persecuted by the Taliban for my imputed political views.

   (7)In failing to understand this aspect at No. 6 I was not afforded natural justice or procedural fairness as the Member did not ask or failed to ask questions on this point.

   (8)The Member failed to consider relevant information supporting my case; relevantly the DFAT Country Report referred to at the hearing.

   (9)In failing to consider this aspect at No. 6 I was not afforded natural justice or procedural fairness by the Member.

   (10)The member has erred in assuming that Pakistan is homogenous and that her are no ethnic differences and issues that arise from these differences especially linguistic differences.

   (11)The Member did not understand my Membership of a particular social group and the fact that the members of this social group are targeted throughout Pakistan.

Extension of Time

1. The applicant seeks an extension of time in which to file his application for judicial review. Section 477 of the Migration Act 1958 (the “Act”) provides:

   (1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:

   (aa)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (ba)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)In this section:

   date of the migration decision means:

   (aa)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or

   (ba)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); or

   (ca)in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the oral decision; or

   (da)in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

2. The decision of the Tribunal is dated 22 March 2012. The application for judicial review was filed on 30 April 2012. The application was required to be filed on or before 26 April 2012. The Minister consented to an extension of time being granted and an extension was ordered by Registrar Caporale on 6 June 2012. The Court is not required to consider the issue.

3. At the hearing before this Court on 11 October 2012, the applicant represented himself with the assistance of a Pashto interpreter; Ms Whittemore represented the Minister.

Ground One – Relocation

1. Ground one alleges:

   The Member in coming to his decision has not understood the Principle of relocation. She has not understood the High court decision in regard to this matter. See Plaintiff M 13-2011v Minister for Immigration and Citizenship {2011} HCA23 (23 June 2011).

2. As decided by the Full Court in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46:

   “The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa [1994] FCA 1253; 52 FCR 437 at 442–443, especially at 443C–D.

   We do not think that the decision of Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 dictates any different result. In our view, the result in that case turned on its own facts. Of particular importance in that case was the acceptance by the Tribunal that the applicant had been harassed in the past as he had alleged

   In the present case, the Tribunal rejected all of the appellant’s claims of past harm and there was no basis for the Tribunal to speculate that the appellant may be harmed if he relocated”.

3. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, Black CJ observed that the focus of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the “Convention”) is not upon the protection that the country of nationality might be able to provide in particular regions, but upon a more general notion of protection by the whole of the country. At 441, Black CJ considered that the reason for this was that:

   “If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders”.

   In Randhawa, Black CJ held that given the humanitarian aims of the Convention, the question to be asked is not merely whether an applicant could relocate to another area, but whether he or she could “reasonably be expected to do so”. His Honour stated (at 442):

   “… a person’s fear of persecution in relation to that country [of nationality] will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person”.

   Beaumont J agreed that relocation must be a reasonable option, stating at [451]:

   “… that is to say, if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution”.

4. As stated by Hayne J in Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23 at [21-22]:

   “Consideration may be given to the possibility of a claimant for protection… if relocation is a reasonable (in the sense of practicable) response to a fear of persecution[1]. As three members of this Court pointed out in SZATV v Minister for Immigration and Citizenship[2], “[w]hat is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person…

   It is evident that the particular circumstances of the plaintiff were not considered by the delegate… By not correctly identifying the relevant question, the delegate made a jurisdictional error”.

   [1] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

   [2] (2007) 233 CLR 18 at 27 [24] per Gummow, Hayne and Crennan JJ; [2007] HCA 40. See also at 48-49 [100]–[102] per Kirby J, 49 [105] per Callinan J.

5. The error identified by Hayne J in Plaintiff M13 (supra) is that, the delegate in determining what was “reasonable” in the sense of practicable, did not consider “the particular circumstances of the applicant for refugee status and the impact upon that person” of relocation of the place of residence within the country of nationality.

6. The Court accepts the submission for the Minister, that the Tribunal applied the correct test in the present case, in finding that the applicant could safely relocate to another urban centre in Pakistan including “Rawalpindi, Islamabad, Lahore or Karachi” (Court Book (“CB”) p.280 [145]).

7. In reaching that conclusion, the Tribunal took into account where the applicant had lived in Pakistan (“Nowshera”) and where he would have to relocate from (CB p.256 [29], p.262 [53] and p.280 [145]). This was not considered in Plaintiff M13.

8. The Tribunal in the present matter considered the particular circumstances of the applicant and the impact on him of relocation (CB p.279 [138-143]).

9. The Court finds no error of law in the way the Tribunal considered the issue of relocation.

10. Ground one is dismissed.

Ground Two

1. Ground two alleges:

   The Tribunal not understand the concept of real chance of risk to me should I be returned to Pakistan.

2. The Tribunal considered the question of “real chance of risk” and did “not accept that the applicant faces a real chance of being killed, kidnapped, forcibly recruited, or otherwise seriously harmed at the hands of the TTP (Tehrike-e-Taliban Pakistan) or other Sunni Muslim fundamentalist groups if he were to relocate to another part of Pakistan away from the (provinces of) KPP (Khyber Pakhtunknwa Province) or the FATA (Federally Administered Tribal Areas) for any of the reasons claimed by the applicant…”. (CB p.280 [145])

3. There is nothing to establish that the Tribunal did not understand the concept of “real chance of risk”. The Tribunal was free to accept or reject the evidence proffered.

4. As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

   “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.

5. Ground two is an attempt to review the merits. The findings of fact by the Tribunal are not amenable to review.

6. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.

7. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]: “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.

8. The Court refers to the following decisions:

   “The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence… and no detailed reasons need to be given as to why that particular witness was not believed…In any event, the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. : Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]”.

9. In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J stated at [24]:

   “It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”.

10. As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:

    “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234)”.

    The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].

    The Court does not make that finding in this case.

11. As stated in Lee (supra) at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.

12. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:

    “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.

    And at [29]:

    “if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.

13. The Court finds no error of law in the way the Tribunal dealt with the concept of “real chance of risk”. The Tribunal outlined the concept of “real chance of risk” in its decision (CB p.254 [16]).

14. Ground two is dismissed.

Ground Three

1. Ground three alleges:

   The Tribunal in making its assessment of real chance of risk or harm the Member relied on dated country information about Pakistan. The Member failed to understand the reality of the networking and cooperation between the many Taliban groups in Pakistan.

2. The Tribunal set out the country information provided by the applicant (CB p.268 [94-98]).

1. The Tribunal set out its consideration of “Relevant country information” at CB p.269 [100-118]. At CB p.278 [132-135], the Tribunal considered the country information referred to above. That information included the country information provided by the applicant and set out at CB p.268 [94-95]. The Tribunal therefore relied on the country information that it considered to be relevant.

2. “By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that”. NAHI (supra) at [11].

3. “Both the choice and the assessment of the weight of” country information is a matter for the RRT. “The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal”. (NAHI [13])

   “The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected it, or attributed less weight to it than to another item”. (NAHI [14])

   “The Tribunal does not commit jurisdictional error when it prefers one body of country information over another”.

   NAHI (supra) at [13-14] and affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26].

4. A decision maker must take into account the most current information available to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44 – 45. A failure to act upon the most current information available is a denial of natural justice: SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938 at [32]-[33].

   However, the Court finds that there is no principle that a failure to refer to the most recent country information is necessarily a legal error. As pointed out in VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 (FC) at [41], such information may be from a less reliable source than older information.

5. The reasons of the Tribunal show that it relied on extensive country information from late 2011 (CB p269.9 and p.271.1, .3 and .6) which is later than the information provided by the applicant (CB p.268 [94-98]).

6. Ground three is dismissed.

Ground Four

1. Ground four alleges:

   In relying on dated information about Pakistan I was not afforded natural justice or procedural fairness.

2. The applicant provided the country information he sought to rely on, and appeared at the hearing before the Tribunal with the assistance of an interpreter and his migration agent (CB p.262 [51]).

3. This ground is dismissed for the same reasons that ground three is dismissed.

Ground Five

1. Ground five alleges:

   The Tribunal coming to her decision did not understand my mental health condition nor did it place weight on the Psychologists reports provided.

2. The Tribunal found that the applicant “had capacity to participate in the hearing despite any stress he may have been suffering” (CB p.280 [142]).

3. That finding of fact was open to the Tribunal for the reasons stated by it [Ibid] and is not amendable to review.

4. The applicant’s migration agent advised the Tribunal by email on 6 February 2012 that the applicant needed at least another three weeks to provide a psychologist’s report regarding the applicant’s mental health. A psychologist’s report was not received by the Tribunal within seven (sic “six”) weeks (CB p.280 [142]), or at all. The Tribunal could not place any weight on a report that was not received by it by the time it wrote its decision. In any event, weight is a matter for the Tribunal.

5. Ground five is dismissed.

Ground Six

1. Ground six alleges:

   The Member failed to understand that I would be persecuted by the Taliban for my imputed political views.

2. Ground six is an attempt to review the merits and is not open on judicial review [NAHI, Selvadurai, Wu Shan Liang, Abebe, Chen Xin He, Tefonu and Lee (supra)].

3. The Tribunal made a finding of fact on the claimed risk of persecution for the applicant’s imputed political views arising from his moderate religious and political beliefs (CB p.278 [136]). It found that people with his views “do not face a real chance of being seriously harmed by those groups throughout Pakistan” (Ibid [136]).

4. That finding of fact is not amendable to review.

5. Ground six is dismissed.

Ground Seven

1. Ground seven alleges:

   In failing to understand this aspect at No. 6 I was not afforded natural justice or procedural fairness as the Member did not ask or failed to ask questions on this point.

2. The Tribunal set out its consideration of the issue at CB p.278 [136]. The Tribunal was not required to question the applicant about his imputed political views. The Tribunal was required to consider the claim. It did that.

3. The Court finds no denial of natural justice or denial of procedural fairness.

4. Ground Seven is dismissed.

Ground Eight

1. Ground eight alleges:

   The Member failed to consider relevant information supporting my case; relevantly the DFAT Country Report referred to at the hearing.

2. The Tribunal set out extensive detail of the country information before it [including that supplied by the applicant (CB p.268 [94-98])] and its consideration of it. It is for the Tribunal to decide which country information it relies on [NAHI (supra)].

3. Ground eight is dismissed.

Ground Nine

1. Ground nine alleges:

   In failing to consider this aspect at No. 6 I was not afforded natural justice or procedural fairness by the Member.

2. The Tribunal considered and rejected the claim of persecution for imputed political views (CB p.278 [136]). It is for the Tribunal to accept or reject evidence proffered, as it thinks appropriate in all the circumstances Lee (supra).

3. The findings of fact are not amenable to review.

4. Ground nine is dismissed.

Ground Ten

1. Ground ten alleges:

   The member has erred in assuming that Pakistan is homogenous and that her are no ethnic differences and issues that arise from these differences especially linguistic differences.

2. The Court accepts the Minister’s submission that there is no basis for the assertion that the Tribunal assumed that Pakistan is homogenous with no ethnic differences, especially linguistic differences. Instead, in finding that it is reasonable for the applicant to relocate to another urban centre, such as Rawalpindi, Islamabad, Lahore or Karachi (CB p.280 [145]), the Tribunal made an implicit finding that the applicant who is of Pathan ethnicity and a Sunni Muslim (CB p.256 [27]), was not from any of the minority religious or ethnic groups in Pakistan. The applicant failed to establish that he is from a minority group.

3. Although “the concept of onus of proof is not appropriate to administrative inquiries and decision making” (Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant themself, in as much detail as is necessary to enable the examiner to establish the relevant facts.

   The Court refers to the following decisions:

   “The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out”.

   A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451. Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.

4. The Tribunal had regard to the applicant having lived in Lahore for a number of months in early 2007 (CB p.279 [138]). Further, the applicant did not raise any linguistic difficulties as an impediment to him relocating, despite being afforded the opportunity to raise any objections that he wished (for example CB p.267 [87-88]).

5. It was for the applicant to establish his case Yao-Jing (supra), which he failed to do.

6. Ground ten is dismissed.

Ground Eleven

1. Ground eleven alleges:

   The Member did not understand my Membership of a particular social group and the fact that the members of this social group are targeted throughout Pakistan

2. The Court accepts the Minister’s submissions that the Tribunal accepted that the applicant was a member of the particular social groups of:

   1.    His mother and father’s family (CB p.275 [122])

   2.    Members of the family of member of the army (Ibid)

   3.    Individuals who have been educated at army schools (Ibid)

   4.Individuals who have resided and been educated in Western countries (Ibid).

   The Tribunal found that there was not a real chance of the applicant being seriously harmed for this reason (CB p.278 [136). That finding of fact was open to the Tribunal.

3. The Tribunal did not accept that “membership of a wealthy family” is of itself a particular social group in Pakistan for the reasons it set out at CB p.276 [123]. That finding of fact was open to the Tribunal.

4. The Tribunal considered the country information before it and did not find that the applicant faced a real chance of serious harm for membership of particular social group (4) (CB p.278 [136]).

5. The Tribunal found that that applicant would not face a risk of harm at the hands of the TPP or other extremist militant groups in other parts of Pakistan outside the KPP and FATA (CB p.279 [137]).

6. The Tribunal considered whether the applicant could relocate within Pakistan and found that “even cumulatively assessing the elements of the applicant’s profile – including that he is the family member of a number of members of the military, the son of a woman teacher who taught at a coeducational school and (sic “ of a”) now deceased Army officer, a moderate Sunni Muslim who holds beliefs critical of the TTP and other extremist Sunni Miss  Muslim militant groups, was educated at Military schools, attempted to be selected for Army service and is from a relatively wealthy family – the Tribunal does not accept that the applicant faces a real chance of being seriously harmed in other parts of Pakistan outside the KPP and FATA” (CB p.278 and 279 [137]).

7. It is apparent that the Tribunal understood and considered the range of particular social groups that the applicant could be seen as belonging to. It then assessed the risks that such members could face in the provinces of the KPP and FATA. It found that those risks would not be faced if the applicant relocated outside those areas.

8. Those findings of fact are not amenable to review.

9. Ground Eleven is dismissed.

10. At the hearing before the Court, the applicant claimed that the Tribunal was biased because it reached its decision on the day before the complementary protection provisions in s.36(2)(aa) of the Act came into operation.

11. Section 36(2)(aa) provides:

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.

12. No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].

13. The Tribunal applied the applicable law at the time. To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].

14. In order to make out a case of actual bias on a decision-maker’s part, the person alleging bias must establish that, before a conclusion could properly be reached, the decision-maker had made up his or her mind and was incapable of being persuaded differently; see e.g. JiaLegeng (supra) at 531 per Gleeson CJ and Gummow J.

    A party alleging bias carries a heavy onus. The allegation must be “distinctly made and clearly proved” see Jia 531 per Gleeson J and Gummow J and 546 per Kirby J. A case of actual bias is seldom made out by reference solely to the decision-maker’s reasons for decision.

15. In Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at 434 at [27], the High Court stated (citing Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ) that:

    “The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”.

    There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”. Bias has not been established.

16. The Court refers to the following passage in SCAA (supra) at [38]:

    “Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion”.

17. Further, the fact that the Tribunal did not believe the applicant’s claims is not evidence of bias. Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872.

18. No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD (supra) at [22], citing Jia Legeng (supra). The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA (supra) at [38].

19. The applicant claims that if his decision had been delayed until 24 March 2012 which is when s.36(2)(aa) commenced to operate, he would have had another basis on which to claim relief.

20. The Court accepts the Minister’s submission that s.36(2)(aa) did not apply to the application at the date of decision. Nothing has been put to establish bias. Further, the Tribunal found that the applicant “can safely relocate to another urban centre in Pakistan”. Therefore there would not be a real risk of significant harm under s.36(2)(aa) [Refer s.36(2B)(a)]. The Court rejects this ground of complaint.

21. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

22. The application for judicial review is dismissed.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of F. Turner FM

Date:  31 October 2012